I am unable to agree with the majority of my associates in the affirmance of the judgment of the supreme court of errors of Connecticut in this case, and I will state, briefly, the grounds of my disagreement.

Section 2546 of the States of Connecticut, contained in the Revision of 1888, enacts that 'no person shall at any time kill any woodcock, reffled grouse, or quail, for the purpose of conveying the same beyond the limits of this state; or shall transport, or have in possession with intent to procure the transportation beyond said limits, any of such birds killed within this state'; and it adds, in substance, that the reception by any person within the state of any such bird or birds for shipment to a point without the state shall be prima facie evidence that the bird or birds were killed within the state for the purpose of carrying the same beyond its limits.'

The criminal court of common pleas overruled every person who shall kill, destroy, or attempt to kill, any woodcock, quail, ruffied grouse (called 'partridge'), or gray squirrel, between the 1st day of January and the 1st day of October, shall be fined in a sum not exceeding $25.

The present proceeding was commenced by an information presented by the assistant district attorney of the city of New London, Conn., against the defendant, Edgar M. Geer, in the police court of that city, charging that he did, on the 19th of October, 1889, unlawfully receive and have in his possession certain woodcock, ruffled grouse, and quail, killed within the state after the 1st day of October, 1889, with the wrongful and unlawful-intention to procure their transportation without the limits of the state.

Upon the information, the judge of the police court issued to the sheriff of the county, and to his deputies, a warrant for the arrest of the defendant, and to have him before that court to answer the complaint. The defendant, being brought before the court, pleaded to the complaint that he was not guilty; but, as it is alleged, the court, having inquired into the matter, adjudged him to be guilty, and that he pay a fine of a specified amount, together with the costs of the prosecution, and stand committed until the judgment be complied with. From that decision the accused appealed to the next session of the criminal court of common pleas to be held for New London county, on the second Tuesday of December, 1889. At that court and term, he appeared, and demurred to the complaint, on the ground-First, that the matters contained therein did not constitute an offense; second, on the ground that it did not allege that the birds wree killed for the purpose of being conveyed beyond the limits of the state; third, on the ground that section 2546 of the General Statutes of Connecticut, under which the complaint was brought, was void and unconstitutional, so far as it could be construed to forbid the transportation of the birds killed from the state, or having possession of them with intent to procure their transportation to another state, averring that the birds had been sold to parties in such other state, and had begun to move as an article of interstate commerce; fourth, on the ground that it appeared in the complaint that the defendant was not guilty under the section if the birds were bought by him in the markets of the state as merchandise, and had begun to move to another state as an article of interstate commerce, such facts being averred in the complaint to exist.

The criminal court of common pleas overruled the demurrer, and found that the complaint was sufficient, and, the accused having declined to answer over, it was held that he was guilty of the offense charged, and he was accordingly sentenced to pay a fine of $25 and the costs of the prosecution, and to stand committed until the judgment was complied with. The defendant thereupon appealed from the judgment rendered by the criminal court of common pleas to the supreme court of errors of the state for the Second judicial district, to be held at Norwich on the last Tuesday of May, 1891. On that day the supreme court of errors found that there was no error apparent in the judgment of the criminal court of common pleas, and accordingly affirmed it. An appeal was then taken from the decision of the supreme court of errors to the supreme court of the United States, in which latter court the plaintiff in error assigns the following as grounds of error in the lower court:

(1) In refusing to hold that so much of section 2546 of the General Statutes, under which the complaint was brought, as might be construed to forbid the transportation from the state of the birds described, lawfully killed, and permitted by the laws of the state to become the subject of traffic and commerce, was unconstitutional and void.

(2) In refusing to hold that so much of the section as might be construed to forbid the receiving and having in possession, with intent to procure the transportation thereof to another state, the birds described, lawfully killed, and permitted by the laws of the state to become the subject of traffic and commerce, was unconstitutional and void.

(3) In holding that the defendant was guilty of an offense under the section if the birds were lawfully killed in the state, and were bought by the defendant in the market of the state as merchandise, and had begun to move as an article of interstate commerce.

And this court, notwithstanding the errors assigned, affirms the judgment of the supreme court of errors of Connecticut.

The record sent to it from the supreme court of errors of the state presents the questions, supposed to be involved, in a very confused and indistinct manner. Disentangling them from the mass of words used, it appears that the supreme court of errors held that it was an offense against the statute upon which the information was filed in the police court of New London for the accused to have in his possession any of the birds mentioned, killed in the state within the period designated, for the purpose of transporting them without the state, and that it was to be inferred, under the law, that the birds were killed within the state for that purpose. But, if that constitutes the offense at which the statute aimed, the information is defective innot alleging that the birds were killed for the purpose stated,-that is, of conveying the beyond the limits of the state,-and thus that they were unlawfully killed.

The transportation of birds described, to another state, which were lawfully killed, does not constitute an offense under the statute. The transportation against which the statute was levied was that of birds unlawfully killed; the evident object of the law being to prevent birds unlawfully killed from being transported to the markets of another state. The law was directed against the killing of the birds within certain designated months of the year; and, in furtherance of that law, the transportation of them to another state was declared to be unlawful. The supreme court of errors held that it was not unconstitutional for the state to enact that birds might be killed and sold or held for domestic consumption only; and that, although the birds became a lawful subject of property when killed, within the state for the purpose of food, it was competent for the state to limit their sale for that purpose to the needs of domestic consumption. And this court, in affirming the judgment of the supreme court of errors, appears to sanction that doctrine; but to its soundness I cannot yield assent.

When any animal, whether living in the waters of the state or in the air above, is lawfully killed for the purposes of food or other uses of man, it becomes an article of commerce, and its use cannot be limited to the citizens of one state to the exclusion of citizens of another state. Although there are declarations of some courts that the state possesses a property in its wild game, and, when it authorizes the game to be killed and sold as an article of food, it may limit the sale only for domestic consumption, and the supreme court of errors of Connecticut, in deciding the present case, appears to have held that doctrine, I am unable to assent to its soundness, where the state has never had the game in its possession or under its control or use. I do not admit that in such case there is any specific property held by the state by which in the exercise of its rightful authority, it can lawfully limit the control and use of the animals killed to particular classes of persons or citizens, or to citizens of particular places or states. But, on the contrary, I hold that where animals within a state, whether living in its waters or in the air above, are, at the time, beyond the reach or control of man, so that they cannot be subjected to his use or that of the state in any respect, they are not the property of the state or of any one in a proper sense. I hold that, until they are brought into subjection or use by the labor or skill of man, they are not the property of any one, and that they only become the property of man according to the extent to which they are subjected by his labor or skill to his use and benefit. When man, by his labor or skill, brings any such animals under his control and subject to his use, he acquires to that extent a right of property in them, and the ownership of others in the animals is limited by the extent and right thus acquired. This is a generally recognized doctrine, acknowledged by all states of Christendom. It is the doctrine of law, both natural and positive. The Roman law, as stated in the Digest, cited in the opinion of the majority, expresses it as follows: 'That which belongs to nobody is acquired by the natural law by the person who first possesses it.' A bird may fly at such height as to be beyond the reach of man or his skill, and no one can then assert any right of property in such bird; it cannot, then, be said to belong to any one. But when, from any cause, the bird is brought within the reach and control or use of man, it becomes at that instant his property, and may be an article of commerce between him and citizens of the same or of other states.

In an opinion written by me some years since, I had occasion to speak of this rule of law. I there said that it was a general principle of law, both natural and positive, that where a subject, animate or inanimate, which otherwise could not be brought under the control or use of man, is reduced to such control or use by his individal labor or skill, a right of property in it is acquired. The wild bird in the air belongs to no one, but when the fowler brings it to the earth and takes it into his possession, it is his property. He has reduced it to his control by his own labor, and the law of nature and the law of society recognize his exclusive right to it. The pearl at the bottom of the sea belongs to no one, but the diver who enters the water and brings it to light has property in the gem. He has by his own labor reduced it to possession, and, in all communities and by all law, his right to it is recognized. So the trapper on the plains and the hunter in the North have a property in the furs they have gathered, though the animals from which they were taken roamed at large, and belonged to no one. They have added by their labor to the uses of man an article promoting his comfort, which, without that labor, would have been lost to him. They have a right, therefore, to the furs, and every court in Christendom would maintain it. So, when the fisherman drags by his net flsh from the sea, he has a property in them, of which no one is permitted to despoil him. Water Works v. Schottler, 110 U.S. 374, 4 Sup. Ct. 48.

In State v. Saunders, 19 Kan. 127, the defendant was charged, as the agent of the Adams Express Company, with receiving at Columbus, Kan., 'certain prairie chickens, which had been recently killed as game,' and shipping them to the city of Chicago, in the state of Illinois. The statute under which he was prosecuted made it unlawful for any person to transport or to ship any animals or birds mentioned, among which were prairie chickens, out of the state of Kansas, and subjected him, on conviction thereof, to a fine of not less than ten nor more than fifty dollars. The defendant admitted the facts as alleged, but contended that such acts constituted no offense, claiming that the statute of the state under which the proceedings against him were commenced was unconstitutional and void. The district court held the statute valid, and found the defendant guilty, and sentenced him to pay a fine of $10 and costs of prosecution. From the conviction and sentence, he appealed to the supreme court of Kansas, which reversed the judgment of the district court, holding 'that no state can pass a law (whether congress has already acted upon the subject or not) which will directly interfere with the free transportation from one state to another, or through a state, of anything which is or may be a subject of interstate commerce,' and referred to the case of Welton v. State, 91 U.S. 275, 282, where it was held by this court that 'the fact that congress has not seen fit to prescribe any specific rules to govern interstate commerce does not affect the question. Its inaction on this subject, when considered with reference to its legislation with respect to foreign commerce, is equivalent to a declaration that interstate commerce shall be free and untrammeled.'

I do not doubt the right of the state, by its legislation, to provide for the protection of wild game, so far as such protection is necessary for their preservation, or for the comfort, health, or security of its citizens, and does not contravene the power of congress in the regulation of interstate commerce. But I do deny the authority of the state, in its legislation for the protection and preservation of game, to interfere in any respect with the paramount control of congress in prescribing the terms by which its transportation to another state, when killed, shall be restricted to such conditions as the state may impose. The absolute control of congress in the regulation of interstate commerce, unimpeded by any state authority, is of much greater consequence that any regulation the state may prescribe with reference to the place where its wild game, when killed, may be consumed.

When property, like the game birds in this case, is reduced to possession it becomes an article of commerce, and may be the subject of sale to the citizens of one state or community, or to the citizens of several. The decision of the court, however, would limit the right of sale of such property, however valuable it may become, and whether living or killed, to the directions of the state or community in which the property is found, and would convert it from the freedom of use which belongs to property in general to the limited use of the persons or communities where found, or to a particular class to which only property possessed of special ingredients or qualities is limited. I do not think that it lies within the province of any state to confine the excellencies of any articles of food within its borders to its own fortunate inhabitants to the exclusion of others, and that it may lawfully require that game killed within its borders shall only be eaten in such parts of the country as it may prescribe.

By the constitution of the United States, it has been adjudged that commerce between the states is under the absolute regulation of congress, and that, whenever an article of property begins to move from one state to another, commerce between the states has commenced, and that with its control or regulation no state can interfere. Welton v. State, 91 U.S. 275; Henderson v. Mayor, etc., 92 U.S. 259; Chy Lung v. Freeman, Id. 275; Ward v. Maryland, 12 Wall. 418; State Tax on Railway Gross Receipts, 15 Wall. 284; Sherlock v. Alling, 93 U.S. 99.

I therefore dissent from the conclusion of the majority of my associates in affirming the judgment of the supreme court of error of Connecticut.